About this weblog

Here we'll explore the nexus of legal rulings, Capitol Hill
policy-making, technical standards development, and technological
innovation that creates -- and will recreate -- the networked world as we
know it. Among the topics we'll touch on: intellectual property
conflicts, technical architecture and innovation, the evolution of
copyright, private vs. public interests in Net policy-making, lobbying
and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

September 30, 2011

Sharing is Awesome, Two Years In

Over at The Big Questions blog, my friend Steve Landsburg (who is himself no slouch at economic math) gives a shout-out to MathOverflow on the occasion of its second year. MathOverflow, and its companion site MathStackExchange, are breaking new ground in public collaboration and shared teaching/learning of mathematics from college level up to the newest theoretical advances. As Landsburg points out, these sites enable problems that might have taken months of work by an isolated individual to be solved in hours. They make this work by a careful combination of openness (anyone can join in) and restriction (MathOverflow really is for experts and active researchers), a model that I think can be replicated in many other fields.

September 29, 2011

CBLDF Takes Possession of CCA Seal

CBLDF (the Comic Book Legal Defense Fund) sent out an announcement saying that they have taken over the intellectual property - including design, merchandising, and promotion - rights around the Comics Code Authority Seal of Approval. This is mostly a free-speech and intellectual freedom story, as the rights were assigned from a defunct entity with little controversy. Still, it's important to remember that intellectual property can be wholly hijacked by the same governments that provide protections like patents and copyrights. If you're not familiar with the CCA Seal story, CBLDF have a very nice summary up on their site.

September 27, 2011

Mark Glaser, whom I just started following on Google+, linked to a couple of Mediashift stories of interest to Copyfighters, I think.

In the first story Audrey Watters takes up a particular instance of the problem with lending libraries and e-books: school libraries. These libraries, like others, are facing incredibly tight and shrinking budgets these days and may not be able to afford a major transition from traditional physical books to e-readers/e-books and the potential additional financial implications of setting up a lending program for electronic books. It won't surprise anyone here to read that DRM is a (maybe the) big hurdle to getting these programs going. Libraries can't afford to buy an excessive number of devices, so DRM that locks books to specific devices or even brands of device is a non-starter.

September 26, 2011

Fred von Lohmann pointed to this announcement of the new, improved SCOTUSblog. The blog has always been a go-to site for professionals and amateurs like myself who are trying to puzzle out what the various Supreme Court pronouncements and goings-on actually mean.

The blog now is big enough to support four full-time employees, with the backing of Bloomberg Law. Bloomberg remains a paid commercial service, but here they are doing a really awesome thing in sponsoring a fully free open and accessible source of high-quality analysis and content. In addition, SCOTUSblog is promising to offer more non-text content such as audio and video. My guess is that without someone to foot the bill they couldn't afford the extra bandwidth costs that these kind of content incur.

As sole sponsor Bloomberg Law gets props both in the site banner and in advertising space in the right-hand column. It will be interesting to see how they use these spaces and what influences and effects they have on the site in the future. As always I remain interested in sponsorship (patronage) business models and how they play out for creative folk everywhere.

In that month they estimate that ebook sales are within a few percentage points of hardcover sales, in dollars: $84.9 million for hardcovers and $80.2 million for ebooks. Trade and mass-market paperbacks together are still on top at $95.8 million combined, split about evenly. That means taken separately each of these categories is now below $45 million. Trade paperback sales were reported to be down 64%.

Analyses for why the sharp reversal has taken place are spotty. As we noted earlier, prices for ebooks have been forced sharply upward because of the switch to the agency model, but unit sales have continued to climb. There are also a couple of one-time events pushing on the trend: Borders closed, cutting into physical sales, and Harry Potter e-books are due to be released later this year, which everyone expects will cause a huge spike upward in those numbers.

On a related note, Paul Reynolds blogging for Consumer Reports sounded a typically negative note about the prospects for e-book subscriptions and open-ended rentals such as you can buy in the video realm. I agree with Reynolds: publishers will have to be dragged kicking and screaming, if at all, into this business. Prior to that we'll see significant DRM-cracking and file sharing of ebooks, pretty much exactly recapitulating the story of digital music from 15 years ago because I'll bet you the book publishers have learned nothing from the Cartel's experiences and they are all very very afraid.

When you have little money, you buy second-hand books. Seen a second-hand ebook lately?

Of course, you haven't. There are a few minuscule programs to allow some libraries to lend a few ebooks, but the secondary market for ebooks doesn't exist and likely never will.

It's an interesting, and somewhat frightening, question: if we really do away with physical books, what will poor people read? Should lack of money mean you lose access to the entertainment, value, education, and ideas contained in books?

In exchange, he's asking people who take advantage of the free offer to provide some form of publicity - a tweet, a blog notice (*), a Facebook mention, etc. The natural assumption here is that if you're savvy enough to find, download, and read a PDF version of a book then you're likely connected to one or more social media and may well share interests there with other Lovecraft fans who will find this work of interest. It's kind of an interesting mix of grassroots, viral, and targeted marketing and I think it's rather clever.

(*) I should note for the record that I haven't gotten the PDF and likely won't; my interest in Lovecraft isn't enough to motivate me to read a scholarly work.

September 14, 2011

That's the question being asked by new author Megan Lisa Jones. As we've discussed many times, one of the biggest problems facing new authors is getting noticed. Despite the decline of the book publishing industry thousands of new novels are published each year by established authors. First novels may receive some extra promotion and attention if the publishing house can spare it, or thinks they have a potential mega-hit on their hands, but the vast majority of first novels go by with little or no notice, piled in a virtual corner few people will take the time to browse.

Over in that other corner reside providers like Clearbits (nee LegalTorrents). These outfits are the digital equivalents of vanity presses - you pay them to publish your content not on dead trees but onto the torrent streams. So if you pluck something that might go unnoticed from the traditional publisher corner, and move it over to the self-publishing digital corner, wrap it in a Creative Commons license, and set it free in the ether, what might happen? In the case of Ms. Jones' book, it looks like something over half a million downloads.

Half a million potential readers worldwide is certainly a lot more notice than you'd get from pretty much any traditional publishing arrangement. For a new author trying to build name recognition and planning to turn a first novel into a trilogy and possibly other publications, that's good. For people like me who want to see new business models put to the test, this is very interesting.

Sadly, what's missing from the WSJ blog entry is any of the financials. What did it cost Ms. Jones to do her deal with ClearBits? How does that compare to the costs of a traditional vanity press? Has any income been received directly, or is it all in the form of indirect benefits - certainly you don't find any other new authors in the Wall Street Journal's "Small Business, Big Innovation" competition so you can point out a significant measure of success there. But I think it's too simplistic to say "a book is a business;" I still want to follow the money.

Now, Gaiman has started his own audiobook label using the tools of ACX, the Audiobook Creation eXchange. As with other book labels this one exists not just to promote one man's work - though his name will definitely raise notice - but to find and promote audiobooks of quality by new and existing authors. ACX is a self-described "marketplace" that focuses on the aspects of (audio)book publication and promotion that are usually handled by traditional labels - publication, distribution, marketing, promotion, rights management and so on.

ACX also has a wealth of self-help and learning materials for people who are trying to navigate the business side of things; for example, they have a simple walk-through on various business terms you can establish through them, grants of rights, and so on. They have boilerplate business documents, and FAQs to try and make things simple.

Right now ACX appears largely to be a front end for Audible.com but there's no reason they couldn't serve the same function with different partners, which leads to the question - is this a better way for people wanting to get their audiobooks published to go? Traditional publishing houses seem to be spending a lot of energy suing to keep people from donating books to libraries and not a lot of energy on finding and promoting new audiobooks and new audiobook authors. So there's clearly something of a business vacuum to be filled; here's hoping it can be filled profitably.

September 9, 2011

Book publishers have convinced the US Second Court of Appeals to issue a ruling that is grotesquely hostile to first sale doctrine and seriously makes one question what the hell they think they're going to accomplish. The case at hand is John Wiley & Sons Inc. v. Supap Kirtsaeng.

If you understand all this stuff feel free to pause here and read that. For those who don't, let's start with the basics: "First Sale Doctrine" is an exemption first recognized about 100 years ago in the US to the limited monopolies of copyright law. The doctrine says that if you have a copy of a work that you got legally, then you have the right to resell it after you're done with it. This is particularly relevant for things like books, movie DVDs, game cartridges and so on, all of which have large and reasonably healthy secondary markets both physical and online. In the EU and many other parts of the world this right does not exist; the idea that "I can do what I want with my stuff so long as it's legal" seems to be uniquely American.

First sale doctrine has been under attack for some time in the US. Last year a divided (4-4) US Supreme Court affirmed a Ninth Circuit decision, in a case called Costco v. Omega, that first-sale applied only to things made and distributed in the US. Since the Court was equally divided - Justice Kagan recused herself - the 9th ruling stood but no national precedent was set. Now the Second Circuit has upheld this principle.

The problem? Well, let's see. For starters, do you know if your book was printed in the US or Canada? If it was printed in Canada, be sure not to list it on eBay or Half.com and make sure it doesn't show up at your yard sale or get donated anywhere. Did you order from Amazon UK? If so, you are now not allowed to resell that book. Are you a library that stocks UK authors? So sorry, you can no longer lend those books out unless you went to the trouble and expense of getting the publisher's permission for each and every item.

For your non-US books, do you know whether the listed publisher still has the rights in that book? Did the author's contract expire or get terminated? Did they move to another publisher, and if so did that publisher pick up rights to the author's back catalog when they started publishing her newest works?

You can see where this is headed. Neveryoumind about orphan works - just be sure you're not the kind of dastardly person who GIVES books away to libraries like those whose collections have been damaged by the recent flooding in NY, CT or VT - all states covered by the Second Circuit. Because if you do that now, you're breaking the law; I imagine that libraries that ask for donations are probably guilty of contributory infringement, too.

And if you're a company that does printing work for books or comics or magazines, or your company manufactures those DVDs or cartridges for games in the US, I'd start looking for a new line of work pronto. Because, really, there's not a single reason that any publisher would want to have their materials made in the US anymore when just having them shipped in from overseas allows them to escape that pesky first-sale stuff. Which brings me back around to my original question - what, exactly, do John Wiley think they're going to accomplish here? Do they think they're going to exterminate used book stores? Kill the comic resale market? And to whose benefit?

Can you imagine a time when stores display books with little tags like you see in art museums. "On loan from the permanent collection of Alan Wexelblat"? At least as an individual purchaser I think I'm still allowed to lend friends my books. I think. For now.

(h/t to Doug Pardee for the pointers, and to Dano for the Subject line of this post)

In pre-trial documents SAP admitted that a company called TomorrowNow - an SAP subsidiary - had downloaded or made "hundreds of thousands of infringing copies of Oracle's software and support materials." Given that admission, the purpose of the suit and trial was solely to determine the extent of damages and what SAP would therefore owe Oracle.

According to Ginny LaRoe's story, Judge Hamilton's decision was to limit Oracle to actual damages, denying it more money for "hypothetical license damages". Does any of this sound familiar to you, too? This isn't a free ride for SAP by any means - it's still on the hook for $272 million in actual damages. Oracle may also appeal the judge's ruling, and attempt to get some or all of the full jury award.